Explained: Office of profit

President Ram Nath Kovind on the recommendation of Election Commission of India (ECI) has disqualified 20 Aam Aadmi Party (AAP) MLAs from Delhi, citing that they held offices of profit. In 2016, the ECI had issued show cause notices to 27 AAP MLAs from Delhi who held offices as parliamentary secretaries, after petition was filed seeking their disqualification.

What is ‘office of profit’?

Office of profit is a position in government which cannot be held by Member of Legislative Assembly (MLA) or Member of Parliament (MP). The post can yield salaries, perquisites and other benefits. It has not been defined in Constitution or Representation of the People Act, 1951.

But different courts have interpreted it as position with certain duties that are more or less of public character. However, legislator cannot be disqualified from either Parliament or state assembly for holding any office. It can be done only incase of holding: an office; office of profit; office under union or state government; office exempt by law from purview of disqualificatory provisions. All four conditions have to be satisfied before MP and MLA can be disqualified.

Basic criteria to disqualify an MP or MLA

According to Articles 102(1)(a) and 191(1)(a) of Constitution, legislators (MP or MLA) can be barred from holding office of profit under Central Government or state government as it can put them in position to gain financial benefit. They can be disqualified incase they are being of unsound mind, undischarged insolvent and not being Indian citizen or for acquires citizenship of another country. Under the RPI, 1951 too, holding an office of profit is grounds for disqualification.

Purpose of including ‘office of profit’ for disqualification

Makers of Constitution wanted that legislators (MP or MLA) should not feel obligated to Executive in any way, which can influence them while discharging legislative functions. In other words, they should be free to carry out her duties without any kind of governmental pressure.

How do EC/ courts decide office of profit cases?

In March 2006, President APJ Abdul Kalam had disqualified Jaya Bachchan of form Rajya Sabha with retrospective effect from July 2004 for holding an office of profit as chairperson of UP Film Development Council.

The Supreme Court (SC), in Jaya Bachchan case (2006) disqualifying her from Rajya Sabha had held that office of profit is relevant if office is capable of yielding profit or pecuniary gain and not whether person actually obtained a monetary gain.

It had held that if office carries with it or entitles holder to any pecuniary gain other than reimbursement of out of pocket or actual expenses, then office will be office of profit for purpose of Article 102 (1)(a). However, if person acquires contract or licence from government to perform functions, which government would have itself discharged, will not be held guilty of holding an office of profit.

Issue of parliamentary secretaries

Prime Ministers and Chief Ministers usually appoint parliamentary secretaries from their own parties who are MPs or MLAs assisting Minister in their performing their duties.

West Bengal, Telangana, Karnataka, Meghalaya, Nagaland, Arunachal Pradesh, Mizoram, Punjab and Manipur have had similar incidents of parliamentary secretaries as office of profit. In West Bengal, Telangana and Punjab, the respective High Courts had called appointments of parliamentary secretaries “unconstitutional” and struck down the appointments. The Supreme Court also had struck down Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 in July 2017.